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08/27/97 JOHN W. ADAMS v. SUSSMAN & HERTZBERG

August 27, 1997

JOHN W. ADAMS, PLAINTIFF-APPELLANT,
v.
SUSSMAN & HERTZBERG, LTD., AN ILLINOIS CORPORATION; WILLIAM A. HERTZBERG, LTD., AN ILLINOIS CORPORATION; HARVEY SUSSMAN; WILLIAM HERTZBERG AND SANDRA HERTZBERG, DEFENDANTS-APPELLEES.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE DANIEL J. WHITE, JUDGE PRESIDING.

Released for Publication October 9, 1997.

The Honorable Justice Gordon Delivered The Opinion OF The Court. Cahill And Leavitt, JJ., concur.

The opinion of the court was delivered by: Gordon

The Honorable Justice GORDON DELIVERED THE OPINION OF THE COURT:

Plaintiff brought this legal malpractice action to recover damages allegedly occasioned by the defendants' negligence in failing to prosecute plaintiff's lawsuit against Hertz corporation and a Hertz employee for intentional infliction of emotional distress, malicious prosecution, and defamation. At trial, the defendants' admitted their breach of duties but contended that the plaintiff could not establish that he would have been successful in proving his claims in the underlying action. At the conclusion of trial, the jury returned a general verdict against the defendants in the amount of $300,000.

The defendants filed a motion for judgment notwithstanding the verdict. The trial court granted the motion with respect to plaintiff's underlying claim of intentional infliction of emotional distress and plaintiff's claim for punitive damages but denied the motion with respect to plaintiff's claims for malicious prosecution and defamation ordering instead that a new trial be granted on those claims. Plaintiff filed a petition for leave to appeal pursuant to Supreme Court Rule 306(a)(1) (155 Ill. 2d R. 306(a)(1)) which was granted by this court.

The issues raised by the plaintiff in this appeal are: (1) whether the plaintiff established his underlying claim for intentional infliction of emotional distress; (2) whether the plaintiff was entitled to punitive damages in the attorney malpractice action where those damages were recoverable in the underlying action; and (3) whether the trial court erred in vacating the judgment in its entirety and ordering a new trial. The defendants argue pursuant to Supreme Court Rule 306(a) that the trial court erred in failing to grant judgment notwithstanding the verdict on plaintiff's underlying claims for malicious prosecution and defamation.

In a legal malpractice action, a plaintiff must prove the existence of an attorney-client relationship; a duty arising from that relationship; a proximate causal relationship between the breach of duty and damages sustained; and actual damages. E.g., Glass v. Pitler, 276 Ill. App. 3d 344, 657 N.E.2d 1075, 212 Ill. Dec. 730 (1995). Damages are not presumed; the plaintiff must affirmatively plead and prove that he suffered injury as a result of the attorney's malpractice. Glass, 276 Ill. App. 3d 344, 657 N.E.2d 1075, 212 Ill. Dec. 730; Sheppard v. Krol, 218 Ill. App. 3d 254, 578 N.E.2d 212, 161 Ill. Dec. 85 (1991). Where the attorney's negligence is alleged to have occurred during the attorney's representation of the client in an underlying action that never reached trial because of that negligence, the plaintiff is required to prove that but for the attorney's negligence he would have been successful in that underlying action. Sheppard, 218 Ill. App. 3d 254, 578 N.E.2d 212, 161 Ill. Dec. 85; Dunavan v. Calandrino, 167 Ill. App. 3d 952, 522 N.E.2d 347, 118 Ill. Dec. 892 (1988). As a result, the malpractice plaintiff is required to prove a case-within-a-case, that is, the plaintiff is required to prove the underlying action and what his recovery would have been in that prior action absent the alleged malpractice. Glass, 276 Ill. App. 3d 344, 657 N.E.2d 1075, 212 Ill. Dec. 730; Nika v. Danz, 199 Ill. App. 3d 296, 556 N.E.2d 873, 145 Ill. Dec. 255 (1990).

The evidence presented by the plaintiff in support of his underlying lawsuit against Hertz corporation and the Hertz employee for intentional infliction of emotional distress, malicious prosecution and defamation is as follows.

On March 10, 1979, the plaintiff, an IBM employee, was driving an automobile that had been leased from defendant Hertz corporation by another IBM employee, Sharon Kendall, who had been in Chicago on business. At approximately 6 p.m., the plaintiff was stopped by a Chicago police officer, Alan Lucas, because the license plates on the rental vehicle had expired. Lucas testified that the plaintiff told him that the automobile was leased and that he did not have a copy of the lease agreement with him. Lucas ran a name and vehicle check and, after being advised that the plaintiff was wanted on traffic warrants, arrested the plaintiff. Lucas stated that the plaintiff then told him that the automobile was leased by a friend who let him use it. He stated that the plaintiff's arrest on the street was based solely on the outstanding traffic warrants. Lucas testified that upon arriving at the police station, he contacted Hertz security manager, Ronald Dziagwa, and confirmed that the vehicle belonged to Hertz and that it had not been reported stolen. Lucas stated that after his conversation with Dziagwa, Lucas charged the plaintiff with criminal trespass to vehicles, the traffic violation, and the traffic warrants.

On cross-examination, Lucas stated that he issued two traffic citations to the plaintiff; one dealt with restrictions on the back of plaintiff's driver's license and the other dealt with the display of registration plates and stickers. He stated that he became suspicious of the plaintiff when the plaintiff did not produce a rental agreement and because the plaintiff gave conflicting accounts of who had leased the vehicle. Lucas testified that the plaintiff first told him that he had rented the car and after being told that he was under arrest the plaintiff told him that his friend leased the car. He admitted that his police report only said that the plaintiff said the car was rented from Hertz. Lucas did not recall what he told Dziagwa but stated that he probably told Dziagwa that the plaintiff told him that his friend rented the car.

Ronald Dziagwa testified that he received a telephone call from Officer Lucas. Lucas told him that the plaintiff had been stopped driving a Hertz automobile with expired license plates. He also told him that the plaintiff initially stated that the car belonged to a friend; that there was no rental agreement in the car; and that there was not a valid driver's license. Lucas did not tell him that the plaintiff was an IBM employee or that the plaintiff had given the police his IBM I.D. card. Dziagwa testified that he contacted the O'Hare Hertz office and was told that Sharon Kendall, an IBM employee, had used a "Company I.D." to lease the automobile on February 11, 1979 and was to return the vehicle on February 14, 1979. After Dziagwa unsuccessfully attempted to contact Kendall, he telephoned Lucas and authorized him to sign a complaint on Hertz's behalf charging the plaintiff with criminal trespass to motor vehicles, a misdemeanor.

Dziagwa testified that Kendall returned his telephone call at 8:30 p.m., eastern standard time, and that she told Dziagwa that she had given the car to the plaintiff. After talking to Kendall, Dziagwa telephoned Lucas and told him to "be ready for trouble on this one. He did not discuss with Lucas the possibility of withdrawing the complaint. He stated that at the direction of his superiors, he never signed the complaint and never appeared in court. Dziagwa did not personally advise the plaintiff that Hertz would not proceed with the prosecution because "that was between [the plaintiff] and somebody else." It was Dziagwa's understanding that someone had spoken to the plaintiff about dropping the charges.

On cross-examination, Dziagwa stated that, when he received the telephone call from Officer Lucas, Lucas told him that the plaintiff was under arrest for some other charge. Lucas also told him that there was no rental agreement in the car. When asked whether he was told about any violations of the restrictions on the plaintiff's driver's license, Dziagwa testified that he thought the officer told him that the plaintiff did not have a valid driver's license. He stated that if a person does not have a valid driver's license or if a person operates a Hertz vehicle in violation of his license restrictions that he would be driving in violation of the Hertz rental agreement and would be considered an unauthorized user.

Kendall testified by evidence deposition that she leased an automobile from Hertz on February 11, 1979 for one day. On February 12, 1979, she returned to her residence in Boston and gave the automobile to the plaintiff because he needed it for business purposes but did not notify Hertz as to the change. Kendall also testified that on March 10, 1979, she received a message to call Dziagwa regarding plaintiff's arrest in relation to a Hertz rental car and that at approximately 8:30 eastern standard time she spoke with Dziagwa who told her to call Officer Lucas. *fn1 After her conversation with Lucas, Kendall telephoned Dziagwa. During that conversation, Dziagwa told her that he was not going to let the plaintiff go and for his reasons referred to plaintiff's "license plates, the warrant out for his arrest, and past offenses in other places along with cars, something to do with car theft."

Kendall also testified that she had several conversations with a man named Mr. Remy who was a manager at Hertz. Remy promised to get the situation straightened out and told her that "the charges would be cleared up" as soon as the plaintiff would come to his office and show his IBM identification. Kendall further testified that the only people she talked to about the incident and Dziagwa's statements were the plaintiff's mother and sister. Kendall stated that ...


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